Suing Rumsfeld: Torture and the America We Want to Be

JURIST Guest Columnist Admiral John Hutson (Ret. USN), former Navy Judge Advocate General, President and Dean of Franklin Pierce Law Center, and now a party to the ACLU torture suit against Secretary of Defense Rumsfeld, wonders what myriad reports of prisoner abuses by US military personnel say about the America we have become....

I recently joined with Human Rights First (HRF) in a lawsuit against Secretary of Defense Donald Rumsfeld filed March 1. After spending 28 years in the Navy, this was not a step I took lightly or without considerable angst. In the end, I decided that it is a necessary step to get the country back on course with regard to our traditional abhorrence of torture and support of human rights.

HRF and the ACLU are representing four Iraqis and four Afghans in an action which seeks compensatory damages and a declaratory judgment based on the torture and abuse they suffered while detained by U.S. forces. The allegations in the 77-page complaint read like a bad horror movie--sensory deprivation, sexual abuse and humiliation, cutting with knives, stress positions, beatings and other forms of shameful abuse. All the allegations have been confirmed by personal interviews with the plaintiffs by credible human rights groups as well as lingering physical evidence.

After they had been tortured, each of the plaintiffs was eventually released from custody at U.S. detention facilities in Iraq and Afghanistan without charges. One was 17 years old. The abuses occurred between June 2003 and June 2004, long after Secretary Rumsfeld had received notice of abuse in Guantanamo by the FBI in December 2002.

The basis of the suit is violations of the 5th Amendment prohibition against torture and abuse that "shocks the conscience", 8th Amendment prohibition against cruel and unusual punishment, the Alien Tort Claims Act, and the 3rd and 4th Geneva Conventions.

In the wake of 9/11, I applauded the Administration's decision to treat terrorist activities as a war, rather than criminal activity. I still think that was the right decision. However, a war does not give the United States the right to torture our prisoners. Torture is wrong legally, morally, militarily, diplomatically and practically.

All the literature and experts essentially agree that as a practical matter torture doesn't work. Eventually, you will gain information, but you have no idea of the validity of the information you get. The torture victims will say anything they think you want to hear just to make you stop the pain. Indeed, while the advocates of torture don't like to hear it, the more useful technique is quite the opposite. It's more effective to gain the trust and confidence of the person from whom you seek information.

Torture is wrong militarily because it emboldens our enemies and in doing so it ultimately imperils our troops. The enemy won't surrender even when their cause is clearly lost, and you can be sure that the pictures out of Abu Ghraib are the most effective recruiting posters possible for future terrorists. Does anyone really think the war has been made shorter or easier because of the torture that we've seen and read about for literally years now?

We can hardly expect our potential allies to eagerly fight along side us if we use tactics such as torture that are repugnant to them. Unless we intend to rely only on Syria, Saudi Arabia, North Korea, and a few others for which torture is part of their national policy, we had better stop. Coalition building isn't easy when other countries are wary about fighting alongside you.

The only purpose to have a military is to fight and win our nation's wars. All the military can be expected to do is to buy the time and space necessary for real solutionsâdiplomatic, social, cultural, economic, and yes, religious--to take place. The military can't provide a solution itself. If we think it does, the solution it provides will be very short lived. That's why it is critically important for the United States Armed Forces to reflect American culture and morality. It's a recipe for disaster if the military somehow becomes different from the rest of America. That's why we have civilian leadership of the U.S. military. That then raises the question of whether the 300 or so known or suspected cases of prisoner abuse and 35-40 investigations of suspicious deaths are reflective of American culture. Is this what we have become? I hope not.

I often hear the argument that the war on terror justifies torture because "Look what they did to us." I find this to be singularly unconvincing. Indeed, it is repugnant to me. I'm disgusted by it. The cowardly actions of terrorists are reprehensible. They can burn in hell for all I care. But if we lower ourselves to the level of the enemy and resort to his tactics, we will have lost the reason for which we were fighting in the first place and lost our soul in the process. Frankly, I'd rather lose the war.

As Secretary of Defense, Secretary Rumsfeld is by law in the military chain of command between the President as commander in chief and the war-fighting commanders. He sits behind the desk where the buck stops. One of the great strengths of our military is the chain of command which is enforced by the concept of accountability. The orders and philosophy that originates at the top of the chain of command drops like a rock down the chain of command. That's as it should be. We rely on that. The problem arises when those at the top are misguided. When that happens, it is necessary that they be held accountable. People have relied on their good judgment, character, vision, and morality and have been let down.

The prosecutions by the Allies after World War II are examples of the legal theory that leaders are responsible for breaches of international law committed by subordinates. It doesn't mean those who actually engaged in the abuse are not responsible, but it does mean that their superiors are also accountable.

The point of this lawsuit is that Secretary Rumsfeld let down his subordinates in the chain of command. He famously repeated the mantra that this was the result of "a few bad apples" and then commissioned a series of investigations to prove that point. It is clear now to the most casual observer that what has occurred was the result his personal involvement in a series of decisions relative to approved interrogation techniques that deviated from generations of military doctrine and American policy.

What we needed from the Secretary was a clarion call that as Americans we will treat everyone, even suspected terrorists, with the dignity and respect that Americans have always treated other human beings simply by virtue of their humanity. Rather, what we heard was essentially that they are all terrorists and therefore beneath contempt so different rules apply.

Why are we torturing people we ultimately release? Apparently, they weren't terrorists in the first place. It's bad enough to torture and abuse known terrorists to get information. It's even worse to torture people just in case they may know something.

Since at least World War II the United States has stood as a beacon for human rights around the world. We were the country that others looked to as the model for the rule of law. We felt comfortable in that role and encouraged it. Now we've taken a giant step down the slippery path from the high road to the low road. Can we ever complain about torture in other countries again, even when U.S. troops are the victims?

Is this the nation we have become? Is this the nation we want to be?

Admiral John Hutson (Ret. USN), is President and Dean of Franklin Pierce Law Center in Concord, New Hampshire. He is a former Judge Advocate General of the Navy.
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